Applications to a magistrate for a warrant for evidence of an indictable offence (Section 8 of the Pace Act)

Section 8 of the PACE Act applies to indictable offences and fills the many gaps in the previous warrant procedure, for example, in relation to a murder weapon, tools used in a robbery, evidence of kidnapping or commercial fraud.

Moreover, it relates to evidence of such offences even if the holder is not suspected of complicity in the offence, whereas many earlier statutory powers were confined to the instruments and proceeds of a particular crime held by a suspect. In addition to the requirements of S15(2) and the Code of Practice, the magistrate must be satisfied of the matters mentioned in S8(1). ‘Satisfied’ has been held to import the ordinary civil standard of proof on the balance of probabilities in the context of Sch 1 of PACE and is likely to be interpreted similarly here (R v Norwich Crown Court, ex p Chethams (1990)). The criteria in S8(1) are as follows.

(i) An indictable offence is involved.

(ii) The relevant material is on the premises.

(iii) The material is likely to be of substantial value to the investigation, whether on its own or together with other evidence. The material could thus be the proceeds of a crime; or evidence of its commission, eg murder weapons, skeleton keys; or evidence confirming other material already held by the police such as fingerprints or a gun to match up with bullets found at the scene of a murder. This last example illustrates the importance of the phrase ‘together with other material’ – a gun without more will not prove murder.

NB: Evidence which is the proceeds of an indictable offence may be sought under S8 but it is more appropriate to seek it under the particular statutory authority which already permits a warrant to search for such evidence. There may be occasions when the proceeds and evidence of the commission of the indictable offence or other confirmatory evidence are all to be found on the same premises. There is then no legal reason why the application for all evidence should not be made under S8 and it will be convenient since the same grounds apply to all three types of evidence (see R v Reading Justices, ex p South West Meat Ltd (1992) where a warrant under the Theft Act 1968 was issued to search for stolen objects and documents. Section 8 would have been appropriate if an indictable offence was involved.) However, there is no necessity to use the S8 procedure if the evidence sought is the subject of an existing statutory authority to issue a warrant. An example may clarify. An armed robbery of a filling station was carried out by a man described as white, 6ft 5ins tall, wearing a trilby hat. Following a press appeal an anonymous caller named one JB as the man responsible. JB, aged 19, fitted the description. Police wished to search his premises for the firearm used, the money stolen and the trilby hat worn. A warrant under the Firearms Act 1968 and the Theft Act 1968 could have been sought to search for the first two items but while the hat could be seized if found in the course of the search (S19) a search for the hat could not continue once the items mentioned in the warrants had been found (Code B 6.9). A warrant under S8 is appropriate, the robbery being an indictable offence and all the other requirements being satisfied, to search for all three items.

(iv) The material is likely to be relevant in the sense of being admissible before a court (S8(1) (c) and (4). The reference to likelihood is understandable given the difficulties of predicting the evidential aspects of a trial which may take place many months later. But, taken together, requirements (iii) and (iv) impose a degree of specificity on the police which ought to exclude the presentation of mere background information which is not potentially admissible at a trial.

(v) The evidence is neither excluded nor special procedure material nor subject to legal privilege. This requirement, set out in S8(1) (d) raises difficult legal issues and the magistrates’ clerk must play an advisory role. Indeed he should vet each application